Can the State decide when a woman must give birth?

By affirming women’s bodily autonomy, the Supreme Court sets the tone for clearer laws on later-term abortions

In January this year, the Bombay High Court told an 18-year-old girl that although she did not want to continue with her 28-week pregnancy, she must. The court reasoned that since the foetus is viable, she can give it up for adoption after delivery. In doing so, the court effectively turned her body into a constitutional waiting room for someone else’s moral imagination.

The facts of the case are concerning. By the time the girl’s mother petitioned, the statutory limit had passed, and the High Court dismissed the plea. The rationale was that “the minor daughter had attained majority as of the date of the order,” and termination at this stage would amount to foeticide. This reasoning reeked of a patriarchal instinct to preserve a foetus over the woman carrying it.

The Supreme Court, in A (Mother of X) vs. State of Maharashtra, did something more than overturn the order. It exposed a structural fault line, one that prompts a staggering question: whether women are rights-bearing citizens or a mere conduit through which society negotiates its anxieties about morality, sex, and, particularly, life.

This issue demands renewed attention, particularly as the apex court deals with another case with nearly identical circumstances. In authorising the termination of a 15-year-old Delhi girl’s pregnancy beyond 28 weeks, the Court has made it evident that forcing a woman to continue with an unwanted pregnancy undermines her dignity and decisional autonomy, effectively reducing her to a vessel for the unborn.

Penned by Justice B V Nagarathna, the judgment is notable not only because it permitted the termination of the pregnancy but also because it rejected the paternalistic idea that increasingly subordinates reproductive autonomy when foetal rights are invoked. The judgment countered the judicial signposting of the pregnant woman as secondary to her pregnancy, holding that a woman’s right to bodily and decisional autonomy cannot be eclipsed merely because a foetus is viable.

As the judge notes, this clarity contrasts with the lived realities of women entangled in family, caste, and religion, which often limit how these women exercise bodily autonomy, particularly their reproductive autonomy. These constraints are further reinforced by the legal barriers restricting access to safe abortion. The choice to continue or terminate a pregnancy is never abstract; it is rooted in complex circumstances that only women can navigate. Reproductive autonomy demands the legal recognition of her right to freely decide without a third party deciding for her. Therefore, this case is not just an ordinary abortion case; it is about who the Constitution views as a full moral agent: a foetus or the woman who carries it.

The apex court in the present case held that the foetus cannot be conceptually conceived as a separate legal entity to erase the constitutional standing of the woman who is carrying it. This perspective gains greater significance when read against the backdrop of a dangerous global trend. Across jurisdictions, abortion restrictions emerge from morality, viability, or State interest, most strongly instantiated by the post-Dobbs landscape in the United States, a cautionary tale of detaching abortion rights from a woman’s autonomy.

India, having woven abortion within Article 21’s constitutional architecture of dignity, integrity, and privacy, narrates a different story. From Suchita Srivastava vs. Chandigarh Administration, which located reproductive choice within personal liberty, and X vs. Health and Family Welfare Department, expanding it beyond marital unions, this case helps negate advanced gestation as a ground to nullify autonomy.

Pathways to reform

This milestone is significant, given the paradoxical terrain of India’s abortion law. Though the Medical Termination of Pregnancy Act is often described as progressive, it remains structurally doctor-centric, meaning women do not possess abortion rights in the fullest constitutional sense. Instead, they must navigate gestational thresholds, statutory barriers, and approvals by medical boards. Access beyond statutory limits can become a judicial lottery, dependent on how tragically the woman is affected or whether hospitals possess the expertise to perform the procedure.

On both grounds, the reality paints a saddening picture. First, for minors, marginalised women or survivors of sexual violence, approaching courts is itself an immense burden, making autonomy illusory. Second, India’s severe public health crisis surrounding safe abortion pushes thousands towards unsafe, clandestine procedures to avoid institutional barriers and delay. Legal paternalism, therefore, often fails women both constitutionally and practically.

The Bombay High Court’s suggestion to give up the child for adoption also invites scrutiny. Framing adoption as an alternative erases the coercion of forced gestation and the trauma, stigma, and psychological violence of compelled pregnancy. This case highlights that autonomy cannot be solely understood as choosing what happens after birth, but also choosing whether childbirth happens at all. The verdict also confronts the unspoken Indian obsession with sexual morality. The stigma around “illegitimate” pregnancy, social shame, and female respectability continue to shadow legal discourse. However, we are yet to see how the Constitution protects individuals from such social conservatism.

This case will, of course, meet objections. Critics will argue for childbirth either for foetal viability or for moral concerns. But the baseline is that the verdict does not endorse unrestricted abortions; it simply refuses viability as a ground to dilute a woman’s agency, an 18-year-old in this case. This distinction is both crucial and important.

The larger concern now is legislative manifestation. This case should not become another celebrated judgment; it should force a reckoning. India needs clearer legal standards for later-term abortions that focus on consent, trauma, and dignity, not just foetal abnormality. The Supreme Court, at least in this case, chose personhood over paternalism. The rest of the State must now decide whether it will do the same.

(Mandar is an associate fellow, and Jwalika is a research fellow at the Vidhi Centre for Legal Policy)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.